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Harrold v. Astrue

July 10, 2008

JOSEPH A. HARROLD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Amy Reynolds Hay

OPINION*fn1

Plaintiff, Joseph A. Harrold, brought this action under 42 U.S.C. § 405(g), seeking review of the Commissioner of Social Security's final decision disallowing his claim for child's disability insurance benefits ("CDIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-433, 1381-1383f.

A. Procedural History

Plaintiff filed an application for benefits on June 10, 2005, alleging disability as of June 11, 1987, due to attention deficit hyperactivity disorder ("ADHD") and autism (Tr. 49-51). Plaintiff's claims were denied on October 17, 2005, and on November 14, 2005, plaintiff requested a hearing before an administrative law judge ("ALJ") (Tr. 28-32, 34).

A hearing was held on August 21, 2006, at which time plaintiff, who was represented by counsel, his mother and a vocational expert ("VE") were called to testify (Tr. 277-316). The ALJ issued a decision on December 1, 2006 (Tr. 11-21), finding that plaintiff is capable of performing a significant range of light work that exists in the national economy and, thus, is not disabled as defined under the Act (Tr. 21). The Appeals Council denied plaintiff's request for review on July 27, 2007, making the ALJ's decision the final decision of the Commissioner (Tr. 5-7).

B. Medical History

Plaintiff was administered the Wechsler Intelligence Scale for Children (WISC-III) on two occasions in order to assess his educational needs. In January of 1993, at the age of 5 years, 7 months, plaintiff obtained a Verbal IQ of 91, a Performance IQ of 84, and a Full-Scale IQ of 81 (Tr. 126). Seventeen months later, in May of 1994, plaintiff was referred to the Child Development Unit of Children's Hospital because he was having difficulties in school with a limited attention span and difficulty finishing tasks independently without supervision (Tr. 244-50). Plaintiff was administered the WISC-III at that time as well, revealing a Verbal IQ of 95 and a Performance IQ of 69 (Tr. 246). In terms of his cognitive functioning, it was noted that plaintiff had above-average reading, vocabulary, and verbal skills, but below-average performance skills, particularly in the areas of dexterity, freedom from distractability, and visual motor skills (Tr. 246). The examiner recommended that plaintiff be promoted from first to second grade and that he receive learning support services (Tr. 245).

On August 18, 2005, Margaret McKinley, Ph.D., performed a consultative psychological examination of plaintiff at the request of the State Agency. Dr. McKinley indicated that plaintiff had been diagnosed with ADHD and Asperger's Syndrome at Children's Hospital in either the fourth or fifth grade and had been in counseling at the Connellsville Counseling Center while in the seventh grade (Tr. 129). Dr. McKinley noted that plaintiff was prescribed Ritalin for a short period of time but stopped taking it due to side effects (Tr. 129). She also noted that plaintiff was assigned a Therapeutic Support Staff ("TSS") to assist him in school and had been in special education classes since elementary school (Tr. 130). As well, Dr. McKinley's notes indicate that plaintiff was not receiving any counseling services at the time and was no longer on any medication (Tr. 130).

Dr. McKinley further noted that plaintiff was not anxious during the interview and denied being depressed although plaintiff reported having mild anxious moods with no panic attacks (Tr. 131). Plaintiff also reported to Dr. McKinley that he generally has good concentration ability except he gets distracted at school when the other kids are "goofing off," and that he has "hurt feelings" due to the actions of the other children at school (Tr. 131). Although plaintiff's father indicated that plaintiff needed to be reminded to take care of himself, plaintiff reported that he performs his own hygiene (Tr. 131). Dr. McKinley also noted that plaintiff does dishes and lawn work, including riding the tractor and lawn sweeper, and helps with the laundry (Tr. 131). Plaintiff reported to Dr. McKinley that his biggest problem was social functioning, indicating that when he tries to do things that other kids do, "it just doesn't feel right" (Tr. 132). Plaintiff also reported, however, that he enjoyed hiking and camping, that he rides his bike and was an Eagle Scout (Tr. 132).

Based on her examination, Dr. McKinley estimated plaintiff's intellectual ability to be in the low average range and diagnosed plaintiff with ADHD and Asperger's Disorder (Tr. 131, 132). Dr. McKinley also assessed plaintiff with a GAF of 50, and opined that the likelihood of substantial improvement was guarded (Tr. 132).

On the mental assessment form, Dr. McKinley indicated that plaintiff was "moderately" impaired in understanding, remembering, and carrying out short, simple instructions, but had "marked" limitations with respect to his ability to understand and remember detailed instructions, carry out detailed instructions, and make judgments on simple worker-related decisions (Tr. 135). Noting that plaintiff "has major difficulties in situations when working and interacting with others," Dr. McKinley also concluded that plaintiff had "extreme" limitations in his ability to interact appropriately with the public, supervisors, or co-workers, and in his ability to respond appropriately to work pressures and changes in a usual work setting (Tr. 135).

On October 6, 2005, Psychologist Edward James, Ph.D., reviewed plaintiff's records at the request of the State Agency (Tr. 136-152). Dr. James completed a mental evaluation form and assessed plaintiff with "mild" restrictions of activities of daily living, "moderate" difficulties with social functioning, and "moderate" difficulties in maintaining concentration, persistence or pace (Tr. 146). Dr. James stated that Dr. McKinley's assessment was not given full weight "due to inconsistencies with the totality of the evidence in the file," and expressed the view that Dr. McKinley's opinions overestimated the severity of plaintiff's functional limitations (Tr. 151). It also appears that Dr. James considered plaintiff's 1993 IQ scores, showing a Verbal IQ of 91, a Performance IQ of 84, and a Full-Scale IQ of 81, as well as an IEP from Connellsville Area High School dated May 26, 2005, indicating that plaintiff worked hard, was making adequate progress, and achieving his goals and objectives (Tr. 126-27). Based on his review of plaintiff's records, Dr. James concluded that plaintiff "retained the capacity to meet the basic mental demands of competitive work on a sustained basis" (Tr. 151).

C. Hearing Testimony and ALJ Decision

At the administrative hearing, plaintiff testified that he was born on June 11, 1987, and, thus, was 19 years old at the time, and that he had graduated from high school where he had been enrolled in special education classes (Tr. 281-82). Plaintiff also testified that he was about to begin a two year vocational training program in heating and air conditioning at Westmoreland County Community College having received some training in the field in high school (Tr. 282-83). Plaintiff also indicated that he lived at home with his parents (Tr. 283).

As well, it appears that plaintiff has a driver's license and drives about 30-35 miles a week. Plaintiff also testified and that he just started a job making sandwiches at Quiznos Subs three days a week and that because of knee and back problems he has to sit down every 45 minutes to an hour during a shift (Tr. 283-85, 286). He further testified that he had two previous jobs but had difficulty performing his duties because he had to take too many breaks, his doctors had restricted him to lifting no more than 35 to 40 pounds, and the pain in his knees and back caused him to work too slowly (Tr. 287). According to plaintiff, he has severe degeneration in his knees and back and is unable to work because of the pain which requires him to frequently stop and take breaks (Tr. 287-88). Plaintiff indicated that on a scale of one to ten the pain level in his knees is between seven and eight and sometimes nine to nine and a half, but that no one has suggested that he needs surgery (Tr. 289).

Plaintiff also indicated that he plays the guitar, helps clean the house, does a little bit of cooking, that he likes to go bike riding and hiking and, when he gets the chance, camping (Tr. 290). As well, plaintiff testified that he helps with the laundry but gets confused separating the clothes (Tr. 291). Plaintiff also reported that he obtained the rank of Eagle Scout in ...


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